Judge overturns 1989 conviction, death sentenceState considers an appeal in Balto. County drowning

By Eric Siegel Baltimore Sun Staff
September 20, 2001

A federal judge has voided the murder conviction and death sentence
of a man found guilty 12 years ago of drowning an elderly Baltimore County
woman in her bathtub.

In granting a petition for federal review, U.S. District Court Chief
Judge J. Frederick Motz agreed with inmate Kevin Wiggins that there was not
enough evidence to convict him and that his lawyers did not adequately represent
him at sentencing.

"No rational finder of fact could have found Wiggins guilty of murder
beyond a reasonable doubt," Motz said in his opinion issued Tuesday and posted
on the court Web site yesterday.

Ruling that Wiggins had already served time for robbery and theft
convictions stemming from the case, Motz ordered that the 40-year-old be
released from prison within 30 days unless the state appeals. The Maryland
attorney general's office should decide "within the next couple of days"
whether it will appeal to the 4th U.S. Circuit Court of Appeals, said Gary
E. Bair, chief of the criminal appeals division.

If it does, Wiggins' lawyer said he plans to ask Motz to release
his client until a ruling is issued. "I think it's a travesty he's been on
death row for 12 years," said Donald B. Verrilli Jr. of the Washington firm
of Jenner & Block, which has handled Wiggins' appeals on a pro bono basis
for the past 10 years.

Michelle Nethercott, one of Wiggins' two attorneys at the trial
and sentencing in 1989, said she was "relieved" by the decision despite Motz'
ruling that she and co-counsel Carl Schlaich had made "professional errors"
in not presenting evidence of Wiggins' traumatic childhood at his sentencing.
"I've been haunted by this case for the better part of 10 years," said Nethercott,
an assistant state public defender. "I'm relieved that some judicial authority
has agreed with what I believed all along - that there was inadequate evidence
to convict him of murder."

Schlaich, now in private practice, declined to comment, as did the
prosecutor in the case, S. Ann Brobst, a Baltimore County assistant state's
attorney. Motz' order on the petition for a writ of habeas corpus, first
filed two years ago, comes on Wiggins' third round of appeals in the case.

The state's highest court has twice denied Wiggins' appeals, and
the U.S. Supreme Court has twice declined to review the case. The case stemmed
from the death of Florence G. Lacs, 77, who was found drowned in the bathtub
of her Woodlawn apartment Sept. 17, 1988, in what the medical examiner ruled
was a homicide. Wiggins, who had no fixed address and no previous criminal
record, was seen near Lacs' apartment two days before the woman's body was
found and the last day she was seen alive.

That night and the next day, Wiggins and his girlfriend used Lacs'
credit cards and car, and the next day pawned a ring she owned, according
to court records. Though Motz said the evidence against Wiggins "appears
compelling," he said
Baltimore County Circuit Judge J. William Hinkle, who heard the case without
a jury in August 1989, improperly failed to give due weight to evidence that
Wiggins was innocent. For example, Motz wrote that although Lacs' apartment
was ransacked, "Wiggins's fingerprints were not found in the apartment, and
unidentified fingerprints were found." At sentencing before a jury, Wiggins'
trial lawyers were "ineffective," Motz wrote.

He found that Wiggins' lawyers failed to conduct a "reasonable investigation"
of their client's "unfortunate upbringing" that included neglect and physical
and sexual abuse through his teen years.